The battle’s heating up, but this time it’s not in kitchen stadium – it’s in the courthouse. Today’s secret ingredient - copyright which protects reality TV shows such as Iron Chef, American Idol, Real World, Most Extreme Elimination Challenge (MXC) and Big Brother.
An interesting debate has arisen in regards to copyright which subsists in reality TV shows. Recently, broadcasting companies and game show producers have alleged copyright infringement in regards to other reality shows bearing resemblances to their own. In 2008, Japan’s Tokyo Broadcasting System (TBS) filed a claim against ABC, alleging that ABC’s Wipeout infringed the copyright of six TBS shows, including Takeshi’s Castle, MXC and Ninja Warrior. More recently, CBS has sued ABC over allegations that ABC’s Glass House infringes the copyright of CBS’ Big Brother. While the TBS suit against ABC settled out of court, the CBS suit against ABC is unlikely to have a similar outcome, and has been recently discussed on IPOsgoode by Tracy Ayodele. Nevertheless, the current questions regarding the copyright protection available to reality shows, as well as the permissible similarities between shows, remain unsettled.
Lawyer-by-day, punk-rock-bassist-by-night Joe Escalente explains, “copyright is the protection of a creative expression of an idea. Not the idea itself, the creative expression of that idea.” This is due to the “fixation” requirement of the American Copyright Act §102(a), and the Canadian common law’s approach since Canadian Admiral Corp Ltd v Rediffusion Inc.
Under Canada’s copyright regime, any infringement debate commences with an inquiry into whether the expressed idea fits within the categories of works or other subject matter protected under the Copyright Act and whether it meets the CCH originality requirements: “the exercise of skill and judgment” which is not merely a copy of another’s original work or a “purely mechanical exercise.”
Television shows enjoy copyright protection under Canadian law in many facets: the underlying written script and recognizable characters as literary work (see Preston v 20th Century Fox Canada); the original written descriptions of episodes or scenes (see Arbique c Gabriele at para 83) as well as the discourse of the television show as dramatic works; and the character designs as artistic works. The common threads between these elements of the show are their expression in a material form as well as their originality. Reality TV shows are presented with an issue distinguishing between parts of the show which fit within these characteristics, and are therefore copyright protected, and those which are considered unprotected by copyright as the idea can only be expressed in a single manner, or an extremely limited number of forms – known as the doctrine of merger.
While discussing the copyright protection for concepts of television shows, Bob Tarantino’s “‘I’ve Got This Great Idea for a Show’… Copyright Protection of Television Show and Motion Picture Concepts and Proposals” illustrates Canadian cases which have discussed the copyright of television show formats. In one of the illustrated cases, Hutton v Canadian Broadcasting Corp, it was held that CBC’s Good Rockin Tonite (GRT) did not infringe upon the plaintiff’s show Star Chart. While GRT utilized the format and concept of Star Chart, MacCallum J held “the similarities [were] relatively unimportant in the context of copying,” implying, as Tarantino states, there is “unprotected expression necessarily resulting from the manifestation of [an] idea.” In affirming the lower court’s decision and discussing copyright infringement of television shows’ concepts and formats, the Alberta Court of Appeal stated, “the requirement of substantial similarity must be apparent when viewing the works as a whole.”
More recently, the Quebec Court of Appeal in Productions Avanti Ciné-Vidéo c Favreau held an erotic film, which parodied a popular Quebec television show La Petite Vite, copied substantial amounts of the television show’s original and important elements including “the principal characters, their costumes and appearances [including mannerisms and quirks], and the décor.”
Tarantino summarizes the Canadian copyright regime’s stance as “recogniz[ing] that copyright can subsist in concepts or formats for television and feature film productions, provided that the elements otherwise required for copyright protection are present.” For reality TV shows, which can be said to be unscripted narrative programming, certain expressed elements will be copyright protected, while others will be unprotected as they are, in the words of MacCallum J, “common constituent elements of any television program of the genre.”
Disputes surrounding reality TV concepts will hinge on which elements of the show have been appropriated from previous programs. As the TBS/ABC settlement illustrates, the expressed concept of certain obstacle-course competitions, such as Wipeout’s “Cookie Cutter” which is nearly identical to MXC’s “Rotating Surfboard of Death,” are likely to be original, and thus arguably protected by Canadian copyright law. Although a host, an elimination format, and other elements may be unprotected by copyright as they are “common constituent elements” of a obstacle-course reality TV show, copyright likely subsists in the costumes and appearances, including the mannerisms and quirks, of TBS show hosts, as well as the shows’ obstacle-courses. Conversely, disputes involving overarching reality show formats are unlikely to succeed, as the concepts are undoubtedly common to any reality TV show. Thus, perhaps ABC is not out of line in stating that “[e]ven CBS must realize it cannot copyright the idea of 14 contestants living in a house rigged with cameras.” However, keeping Favreau in mind, ABC’s Glass House should be sure to hire a different interior decorator from CBS to avoid any issues involving copying Big Brother’s décor.
Adam Jacobs is a JD candidate at Western University, Faculty of Law.